Judge: Michael Small, Case: 21STCV47364, Date: 2024-07-15 Tentative Ruling

Inform the clerk if you submit on the tentative ruling. If moving and opposing parties submit, no appearance is necessary.

Case Number: 21STCV47364    Hearing Date: July 15, 2024    Dept: 57

 The Court is granting in part the motion of Plaintiff Michael Pircher ("Pircher") to quash the business records deposition subpoena ("the Subpoena") issued by Defendants Kevin Wheaton ("Wheaton") and Believable Bluff, LLC to third party Bergkivst Bergkvist & Carter, LLP ("BBC").   

BBC was Pircher's counsel in connection with a financial transaction between Pircher, on the one hand, and Believable Bluff and one its two members, Michael Chandler, on the other hand.   Wheaton was the other member of Believable Bluff.  Pircher seeks to quash the Subpoena on the ground that the information sought from BBC constitutes communications between Pircher and BBC that are protected from disclosure by the attorney-client privilege. 

Wheaton and Believable Bluff argue that Pircher has waived the attorney-client privilege.  According to Wheaton and Believable Bluff, the waiver occurred during Pircher's deposition earlier this year during which, in response to a a question from counsel for Wheaton and Believable Bluff, Pircher stated that his attorney Paul Carter ("Carter") of BBC advised him that Wheaton's signature probably was needed on a Pledge and Security Agreement ("PSA") that was part of the financial transaction referenced above.  Pircher's current counsel objected on attorney-client privilege grounds at the deposition immediately after Pircher's response to the question about Carter's advice regarding the need for Wheaton's signature on the PSA.  The objection was too late to protect the disclosure of that specific communication: the privilege was waived under Evidence Code Section 912 by Pircher's response to the question.  Section 912 provides that the attorney-client privilege is waived with respect to a protected communication if any holder of the privilege voluntarily discloses a significant part of the communication."   Here, Pircher, as holder of the privilege, voluntarily disclosed a significant part of the communication from Carter regarding the need for Wheaton's signature on the PSA.  Wheaton and Believable Bluff may use that disclosure in their defense of Pircher's claims against them.

This does not mean, however, that Pircher has waived the attorney-client privilege as to every single communication between himself and BBC that is manifested in the records sought in the Subpoena.  Wheaton and Believable Bluff cite no precedent to support that notion, and the Court is unaware of any.  In short, Pircher's assertion of the attorney-client privilege to protect from disclosure other communications that he had with BBC is not too late to block the Subpoena.  

Wheaton and Believable Bluff also argue that Pircher implicity waived the attorney-client privilege by "tendering" (meaning placing) his communications with BBC at issue through his claims related to the PSA.  The Court disagrees. The precedent dealing with tendering of privileged communications so as to waive the privilege establishes a very narrow window through which the privilege can be waived.  Wheaton and Believable Bluff's invocation of that exception here is misplaced.  

Because Pircher has not waived the attorney-client privilege beyond the disclosure of the one communication between himself and Carter to which he testified at his deposition, his motion to quash the Subpoena is granted to the extent the motion seeks to shield other communications between Pircher and BBC from disclosure.

The Court is denying the motion to the extent it seeks an order imposing sanctions against Wheaton and Believable Bluff, for having issued the Subpoena, in the form of the attorney's fees and costs Pircher incurred in connection with the motion.  In the Court's view, the issuance of the Subpoena was not sanctionable. Wheaton and Believable Bluff had a reasonable basis for issuing it.